Summaries of New Decisions

Summaries of New Decisions - May 2011

As announced previously by OIP, we are now posting up-to-date summaries of new court decisions.  To facilitate their review, the cases are broken down by FOIA Exemption or procedural element and internal citations and quotations have been omitted.  OIP provides these cases summaries as a public service; due to their nature as summaries, they are not intended to be authoritative or complete statements of the facts or holdings of any of the cases summarized, and they should not be relied upon as such.

WEEK OF MAY 2

Courts of Appeal

1.  Watkins v. U.S. Bureau of Customs & Border Protect., No. 09-35996, 2011 WL 1709852 (9th Cir. May 6, 2011) (Walter, J.)

Re:  Requests for CBP's Notices of Seizure of Infringing Merchandise from various commercial ports

Holding:  Affirming the district court's decision that Exemption 4 applies to the requested material, but concluding that CBP has waived that protection; and reversing the district court's determination that DHS's regulations control, rather than CBP's regulations, for FOIA fee purposes

• Standard of review:  The Ninth Circuit applies a two-step standard of review for FOIA cases.  First, it determines "whether, de novo, 'an adequate factual basis exists to support the district court's decisions'" and, second, it then reviews "the district court's conclusions of fact for clear error, while legal rulings, including its decision that a particular exemption applies, are reviewed de novo." 

• Exemption 4 (threshold):  The Ninth Circuit holds that Exemption 4 applies to the information in question, but nevertheless concludes that the government waived its ability to assert the exemption by disclosing the Notices of Seizure to trademark owners without placing limits on dissemination.  As an initial matter, the Circuit rejects plaintiff's argument that "the information contained in the Notices of Seizure cannot be commercial because it pertains to 'the unlawful importation of counterfeit goods, and not any sort of legitimate commercial activity.'"  The Circuit instead agrees with the district court that the notices are not "final determinations that goods seized are counterfeit," but rather are "akin to a finding of probable cause," which are subject to administrative and legal challenge by the importer.  As such, the Circuit finds that it "cannot conclude that information contained in a Notice of Seizure is non-commercial just because it's likely – perhaps even very likely – that the merchandise seized is counterfeit," but, rather, holds that "the district court's finding that the Notices contain plainly commercial information, which discloses intimate aspects of an importer's business such as supply chain and fluctuations of demand for merchandize, is well-supported."   

• Exemption 4 (substantial competitive harm):  The government "conceded that importers are mandated to provide" the requested information.  As preliminary issue, the Circuit finds that, despite plaintiff's claims that defendants failed to specify a relevant market with respect to identifying actual competition for Exemption 4 purposes, the request itself "established the relevant market as the entire market for imported goods."  The Circuit then finds that "the Agency's affidavits provide a sufficient factual basis for the district court to conclude that the disclosure of the information in the Notices of Seizure poses a substantial likelihood of competitive injury to importers of non-counterfeit goods who zealously guard their supply chains."  Moreover, "[c]ombine this information with already public information and importers' entire distribution network and demand trends could be revealed."  Accordingly, the Circuit concludes that "[t]he district court was not clearly erroneous in its finding that the information was confidential and privileged" and, therefore, finds that "Exemption 4 applies to Notice of Seizure."

• Waiver/public domain test:  Although the Ninth Circuit finds that requested information qualifies for protection under Exemption 4, it ultimately determines that "CBP waived the confidentiality of the Notices by disclosing them to trademark owners without any further limits on dissemination." The Circuit notes that while 19 U.S.C. § 1526(e) requires "disclosure of the Notices of Seizure to an aggrieved trademark owner," the government does not place limits on disclosure and, accordingly, the trademark owner can "freely disseminate the Notice to his attorneys, business affiliates, trade organizations, the importer's competitors, or the media in a way that would compromise the purportedly sensitive information about an impending importer's trade operations."  While the Circuit considered the "public domain" test articulated by the D.C. Circuit for the purposes of ascertaining waiver, it finds that most cases applying this test deal with "requests for sensitive information involving high-level criminal investigations or matters of national security," which are not at issue in this case.  In a case such as this one, "[t]aken to its logical extreme, the 'public domain' test would still shield commercial information under Exemption 4 even if CBP or an aggrieved trademark owner opened up the phonebook and faxed a copy of a seizure notice to every importer in the region, provided the disclosures were not preserved in some public record."  Accordingly, the Circuit concludes that "[w]hile the public domain test will be persuasive in most cases, it does not reach the concerns of confidentiality in circumstances like those presented in this case" and "[t]herefore, when an agency freely discloses to a third party confidential information covered by a FOIA exemption without limiting the third-party's ability to further disseminate the information then the agency waives the ability to claim an exemption to a FOIA request for the disclosed information." 

• Adequacy of agency declarations:  The Ninth Circuit determines that plaintiff's "argument that CBP could not assert a claim of competitive harm without presenting affidavits from entities named in the Notices of Seizure is foreclosed by [the Ninth Circuit's decision] in Lions Raisins [v. USDA]," which held that "'[c]ourts can rely solely on government affidavits so long as the affiants are knowledgeable about the information sought and the affidavits are detailed enough to allow the court to make an independent assessment of the government's claim.'" 

• Fee calculations:  The Ninth Circuit reverses the district court's decision that DHS's FOIA fee regulations apply to the requests, rather than CBP's regulations.  DHS's FOIA regulations "apply to all components of DHS (which includes CBP)," "'[e]xcept to the extent a Department component has adopted separate guidance under the FOIA.'"  CBP has separate fee provisions and the Circuit finds that since the time that it promulgated the regulations, "CBP has continued to keep these regulations active by amending them and never repealing them."  Moreover,"[r]egardless of the district court's assertion that the revisions were merely technical . . . , they were revisions that demonstrate that the fee regulations are still valid."  Accordingly, the Circuit holds that CBP's regulations control and not those of DHS. 

2.  Furrow v. BOP, No. 10-1628, 2011 WL 1740067 (7th Cir. May 4, 2011) (unpublished disposition)

Re:  Request for plaintiff's prison file

Holding:  Vacating district court's decision dismissing the action on mootness grounds; and remanding for further proceedings

• Summary judgment/mootness:  The Seventh Circuit vacates the decision of the district court dismissing the case on mootness grounds and remands the case for further proceedings.  Contrary to the district court's finding that "the agency 'provided [plaintiff] or made available to him for his inspection all the agency records he requested, except for those which [he] does not contend have been improperly withheld,'" the Circuit concludes that the record demonstrates that "a case or controversy remains" because plaintiff alleges that "the agency has not provided everything [he] wants, and he disputes the validity of the exemptions the BOP claims."  The Circuit notes that "BOP did not give the district court any information about the nature of the documents withheld and the exemptions asserted as to each document, nor did the agency take the alternative approach of submitting the undisclosed documents to the court for in camera inspection and evaluation."  The Circuit finds that until BOP either substantiates its claims of exemption or turns over all requested records to plaintiff, a "redressable dispute remains between the parties." 

In forma pauperis status:  The Seventh Circuit notes that "[a]fter [plaintiff] filed his notice of appeal in this litigation, he disqualified himself from proceeding in forma pauperis in future civil litigation by incurring four recent litigation 'strikes' under 28 U.S.C. § 1915(g)" and accordingly, "[a]bsent a showing of imminent danger, [he] must prepay all filing and docketing fees before initiating any new lawsuit or appeal." 

District Courts

1.  Milton v. DOJ, No. 08-242, 2011 WL 1743234 (D.D.C. May 6, 2011) (Roberts, J.)

Re: Requests for recordings of prison telephone conversations between plaintiff and others

Holding:  Denying BOP's motion for summary judgment without prejudice, finding that although BOP properly invoked Exemption 6 as a basis for withholding certain recordings, it did not satisfy its obligations with respect to segregability

• Exemption 6:  As an initial matter, the court concludes that the telephone recordings at issue meet the threshold of Exemption 6 because they "consist of information that pertain to particular individuals."  In terms of the privacy interests, the court finds that "the '[r]elease of a recording of a telephone conversation can be an invasion of personal privacy.'"  As to the public interest, the court determines that "there is no public interest in disclosure of information about private citizens that reveals 'little or nothing about an agency's own conduct.'"  Additionally, the court notes that plaintiff "has not articulated any significant public interest in disclosure of the phone records."  The court finds that "[i]n the absence of any evidence of government impropriety," plaintiff's claim that the recordings are needed to "support his innocence" only represents a personal interest in the records at issue.  The court also rejects plaintiff's assertion that the waiver that he signed "allowing [BOP] to monitor his phone calls . . . implicitly extends to any party who accepted his calls."  The court notes that plaintiff "has not produced Privacy Act waivers from the individuals with whom he spoke on the telephone" or other evidence of waiver, and concludes that "[n]o uncorroborated surmise that the persons he called necessarily would have heard a recorded warning that the calls were being monitored or recorded should suffice to replace a written Privacy Act waiver."  Accordingly, the court holds that "[b]ecause the privacy interest is more than de minimis, the Department of Justice's withholding under Exemption 6 was proper."    

• Segregability:  The court concludes that BOP's "affidavit provides no basis for concluding that the Department of Justice cannot segregate non-exempt portions of [the telephone recordings]."  The court finds that "[i]t is unclear whether the Department of Justice is claiming that no technology or program exists for editing or modifying [these recordings], whether the Department of Justice merely lacks that technology, or whether it is impossible to segregate the files for some other reason."  Moreover, "the generalized assertion that efforts to segregate calls are difficult because individuals may interrupt each other on the phone and because segregated portions of the calls may lack context is a conclusory claim that is insufficient to demonstrate that there are no portions of these calls that are reasonably segregable."  The court affords BOP time to file a renewed motion for summary judgment.

2. Carson v. SEC, No. 09-615, 2011 U.S. Dist. LEXIS 46974 (E.D. Tenn. May 2, 2011) (Phillips, J.)

Re: Allegation that defendant failed to timely respond to request for records

Holding:  Dismissing plaintiff's complaint as moot

• Mootness:  The court holds that "[a]s petitioner's complaint challenges only the tardiness of the SEC's response to his FOIA request, his claim was rendered moot by the agency's [subsequent] response that no responsive documents could be located."  "Because the petitioner has already obtained all the relief that he seeks in his complaint, there is no live controversy for this court to adjudicate."

3. Carson v. DOJ, No. 10-56, 2011 U.S. Dist. LEXIS 47033 (E.D. Tenn. May 2, 2011) (Phillips, J.)

Re: Allegation that defendants failed to timely respond to requests for records demonstrating DOJ's compliance with 5 U.S.C. § 2302(c)

Holding:  Dismissing plaintiff's complaint as moot

• Mootness:  The court concludes that petitioner's complaint "was rendered moot by the agency's responses" where plaintiff's complaint only alleges that three DOJ components failed to timely respond to his FOIA requests.  The court further notes that "[p]etitoner has submitted no evidence to suggest that any of these agencies was not acting in good faith regarding the attention given to this requests or the time of the responses."

4. Carson v. U.S. Office of Special Counsel, No. 10-57, 2011 U.S. Dist. LEXIS 46951 (E.D. Tenn. May 2, 2011) (Phillips, J.)

Re: Allegation that defendant failed to timely respond to request for records demonstrating Office of Special Counsel's compliance with 5 U.S.C. § 2302(c)

Holding:  Dismissing plaintiff's complaint as moot

• Mootness:  The court concludes that petitioner's complaint was rendered moot where it "challenges only the tardiness of OSC's response to his FOIA request," and, subsequent to the filing of this suit, OSC "released in full all records responsive to his request."  The court notes that "[t]here is nothing more OSC can do to respond to petitioner's FOIA request, and the relief he seeks through his complaint has been fully provided." 

5.  Muset v. Comm'r Ishimaru, No. 07-4083, 2011 U.S. Dist. LEXIS 47587 (E.D.N.Y. Apr. 30, 2011) (Vitaliano, J.)

Re: Requests for records related to IRS's sanction of plaintiff

Holding:  Dismissing plaintiff's FOIA claim as moot as to the records released by IRS and dismissing for lack of subject matter jurisdiction as to the withheld documents due to plaintiff's failure to exhaust his administrative remedies

• Mootness:  The court finds that plaintiff's "claim for relief under FOIA [based on agency delay] became moot when he received the requested documents" after the action was filed.

• Exhaustion of administrative remedies:  The court finds that "as a matter of FOIA process" that plaintiff "was required first to appeal directly to the IRS before seeking federal judicial relief" and that his "failure to exhaust the administrative remedies provided by FOIA divests a federal district court of subject matter jurisdiction over any claim regarding that request for judicial relief."   

6.  Penn v. DOJ, No. 10-2494, 2011 WL 1627343 (E.D. Cal. Apr. 28, 2011) (Brennan, Mag.)

Re:  Requesting leave to amend complaint to add FOIA claims against various California State entities and for appointment of counsel

Holding:  Denying without prejudice plaintiff's motion for leave to amend his complaint and his request for appointment of counsel

• Amending the complaint/proper party defendant:  The court denies plaintiff's leave to amend his complaint to add additional state entities without prejudice, but notes that "because the proposed new defendants are not 'agencies' within the meaning of FOIA, it appears amendment to state a FOIA claim against those defendants would be futile."

• Appointment of counsel:  "The court cannot conclude that plaintiff's likelihood of success, the complexity of the issues, or the degree of plaintiff's ability to articulate his claims amount to exceptional circumstances justifying the appointment of counsel [pursuant to 28 U.S.C. § 1915(e)(1)] at this time."

WEEK OF MAY 9

District Courts

1.  Kottori v. FBI, No.10-11913, 2011 WL 1827673 (D. Mass. May 13, 2011) (Bowler, Mag.)

Re:  Request for records that the FBI "requires her to have in order to release her from detention"

Holding:  Dismissing the complaint for lack of subject matter jurisdiction based on plaintiff's failure to exhaust her administrative remedies

• Exhaustion of administrative remedies:  The court dismisses the complaint for lack of subject matter jurisdiction, concluding that plaintiff failed to exhaust administrative remedies where "neither FBI headquarters nor the FBI's Boston field office have received any document requests from plaintiff" and "[p]laintiff has not offered any evidence to the contrary."  The court notes that "by failing to submit a FOIA request, plaintiff never began the FOIA administrative process and thus cannot show that she has exhausted all administrative remedies." 

WEEK OF MAY 16

District Courts

1.  ACLU of Wash. v. DOJ, No. 09-0642, 2011 WL 1900140 (W.D. Wash. May 19, 2011) (Lasnik, J.)

Re:  Request for records describing the operation and maintenance of the National Crime Information Center's Violent Gang and Terrorist Organization File (VGTOF)

Holding:  Granting, in part, and denying, in part, defendants' motion for reconsideration; permitting government to supplement its Vaughn index with respect to certain withholdings prior to reviewing the contested documents in camera; and concluding that defendants provided an insufficient basis for withholding certain information pursuant to Exemption 7(E)

• Exemption 7(E):  The court orders defendants to provide additional justification for withholding non-public "information describing suspicious indicators that law enforcement officers should look for when attempting to detect possible terrorist activity" under Exemption 7(E).  The court also finds that defendants' description of the nature of "procedures [that] the Terrorist Screening Center ('TSC') follows once the identity of a known or suspected terrorist has been confirmed by reference to the Violent Gang and Terrorist Organizations File ('VGTOF')" "is cryptic and sparse."  The court concludes that defendants failed to provide "'a particularized explanation of how disclosure of the particular document would damage the interest protected by [Exemption 7(E)]" and did not describe how the disclosure of the document would "give rise to a reasonable expectation that identifying the agencies that follow up on a positive VGTOF response will thwart law enforcement."  With respect to a government form used "to supply information regarding individuals for entry into VGTOF," the court rejects defendants' arguments that "disclosure of the minimum level of interest or investigative status necessary for inclusion in the VGTOF will be detrimental to national security."  The court notes that "[a] positive VGTOF response is not disclosed to the individual" and that "a person who already suspects or affirmatively believes that he is on the VGTOF watchlist has all the incentive he needs – or is likely to get – to conceal illegal activities, destroy evidence, and/or modify his behavior."  Accordingly, the court finds that "[t]he agency has not shown that disclosure of additional criteria for entry in the VGTOF could reasonably be expected to risk circumvention of the law under Exemption 7(E)."  

• Exemption 3:  The court agrees to consider Transportation and Security Administration's (TSA's) objection to releasing portions of a government form that TSA claims "is protected from disclosure under Exemption 3 based on the agency's determination that the criteria for placement on the No Fly and Selectee Lists is sensitive security information ('SSI') under regulations promulgated pursuant to 49 U.S.C. § 114(r)."  The court notes that although TSA's involvement in the case is belated, "because final judgment has not yet been entered in this manner, the agency's failure to refer plaintiff's FOIA request to TSA does not appear to have been tactical, and the interests asserted by TSA are weighty, the Court will consider the applicability of Exemption 3."  As such, the court orders defendants to provide further justification for withholding the portions of the government form.

• Exemption 7(D):  The court allows defendants additional time to substantiate their assertion that information contained on a government form and related documents that would "reveal the names of foreign partners which share and exchange information with TSC" is protected pursuant to Exemption 7(D).

2.  Larke v. Dep't of Revenue Child Support, No. 10-12148, 2011 WL 1877684 (D. Mass. May 17, 2011) (Tauro, J.)

Holding:  Dismissing plaintiff's claim brought under 42 U.S.C. § 1983 alleging that an attorney representing a state agency violated the FOIA by failing to release public records upon request

• Proper party defendant:  The court determines that "[p]laintiff's § 1983 claim against [an attorney who represented a state agency] fails because Plaintiff has failed to allege that [the attorney], acting under color of state law, deprived plaintiff of a federal right."  The court finds that even if, as plaintiff alleges, the attorney did not release public records in response to his request, her "conduct could not have violated the FOIA because neither [the state agency] nor [the attorney] is subject to the FOIA."  The court concludes that "[t]he FOIA does not apply to state agencies or their employees," but "[r]ather, the FOIA 'applies only to federal executive branch agencies.'"  

3. Espino v. DOJ, No. 11-0909, 2011 WL 1841918 (D.D.C. May 16, 2011) (Huvelle, J.)

Re:  Request to the Superior Court of the District of Columbia for certain DNA tests

Holding:  Granting pro se prisoner's application to proceed in forma pauperis; and dismissing the case because complaint fails to meet the minimal pleading requirements of Federal Rule of Civil Procedure 8(a)

• Litigation considerations/jurisdiction:  The court dismisses plaintiff's complaint because it fails to meet the requirements of Federal Rule of Civil Procedure 8(a) which necessitate "'(1) a short and plain statement of the grounds for the court's jurisdiction [and] (2) a short and plain statement of the claim showing that the pleader is entitled to relief."  Here, "[t]he instant complaint neither references a FOIA request number nor contains any other information, e.g, a copy of the actual request allegedly submitted to DOJ, from which a FOIA request may be reasonably identified."  Accordingly, the court holds that the complaint "fails to provide adequate notice of a claim and grounds for federal court jurisdiction." 

WEEK OF MAY 23

District Courts

1.  Daley v. Ct. Rep. Records, No. 10-313, 2011 WL 2110304 (D. Del. May 26, 2011) (Stark, J.)

Re:  Request for various records related to a seizure in connection with plaintiff's criminal case

Holding:  Dismissing complaint of pro se prisoner as malicious pursuant to 28 U.S.C. § 1915(e)(2)(B)

• Litigation considerations:  The court dismisses the complaint of a pro se plaintiff pursuant to 28 U.S.C. § 1915(e)(2)(B).  The court finds that plaintiff's complaint is a "malicious filing" because it duplicates a previously litigated action, which the Third Circuit concluded was time-barred.  The court notes that the instant complaint "realleges a previously litigated issue seeking discovery, changing only the legal theory, which is now to assert a claim under the Freedom of Information Act" and further comments that "[n]o facts are provided as to how, when, or where [plaintiff] allegedly sought discovery from the named defendants."  Additionally, the court determines that the claims alleged in the complaint "do not support any of the conditions required for [the] mandamus relief" requested by plaintiff.  

2.  Bundu v. S.C. FBI, No. 10-2004, 2011 WL 2066545 (D.S.C. May 26, 2011) (Childs, J.)
Holding:  Adopting magistrate's recommendation and dismissing plaintiff's complaint without prejudice

• Litigation considerations:  The court dismisses plaintiff's complaint on the basis that he "has failed to state a claim upon which relief can be granted as to the alleged violations of [the FOIA]."  The court finds that plaintiff failed to plead sufficient facts to support his claim where he "merely asserts that he used the Freedom of Information Act to request information, first in 2006 and again in 2009, and that his request was denied on both occasions."  Notably, "[h]e fails to explain, for example, what information he sought, the person or agency from whom he requested it, that person's or agency's basis for denying his requests, or what specific damages he suffered as a result of the denials." 

3. Venkataram v. Office of Info. Policy, No. 09-6520, 2011 WL 2038735 (D.N.J. May 25, 2011) (Simandle, J.)

Re:  Request for records pertaining to co-defendant associated with plaintiff's criminal case, who was later dismissed from the indictment by federal prosecutors

Holding:  Granting defendants' motion for summary judgment with respect to an individual government employee named in the complaint as well as for any unexhausted FOIA requests; and ordering defendants to show cause as to why the matter should not be remanded to the agency to process plaintiff's request

• Proper party defendant:  The court dismisses complaint against a government employee because "'[a] plaintiff may not assert a FOIA claim against individual federal officials.'"

• Jurisdiction: The court grants defendants' motion for summary judgment "with respect to Plaintiff's Complaint to the extent it seeks review of the propriety of unexhausted FOIA requests."  The court concludes that its "jurisdiction is limited to circumstances in which an agency has withheld requested information" and, accordingly, finds that "[t]o the extent Plaintiff now seeks documents beyond those sought in his exhausted FOIA requests . . . he must first file the proper request with the agency." 

• Exemptions 6 & 7(C) (categorical withholding):  The court rejects defendants' argument that records pertaining to a third-party who was dismissed by federal prosecutors from plaintiff's criminal case are categorically exempt from disclosure pursuant to Exemptions 6 and 7(C).  Referencing the Supreme Court's decision in Reporters Committee, the court finds that "[h]ere, Defendants attempt to exclude from production a much broader category of documents than any previously recognized categorical exception under Exemption 6 or 7(C)."  The court finds that "the mere fact that a document contains information related to a private individual does not mean it contains private personal information, much less that it can categorically be reasonably expected to constitute an unwarranted invasion of personal privacy." 

Citing an "extreme" hypothetical, the court opines that "suppose that the Department of Justice had a memorandum explaining their discovery that no such individual exists, and that the indictment was mistaken."  In such a case, the court comments "[t]his document would not be exempt from disclosure on the basis that it revealed [the third party's] private information even though it would be responsive to Plaintiff's request."  Moreover, the court notes that "[e]ven in more plausible circumstances, some responsive documents may contain no private information about [the third party] (for example, a document stating the agency's belief that, based on the allegations in the superseding indictment, the United States lacks jurisdiction over [him])."  Moreover, the court finds that "even if such documents contained more information about [the third party] than in the above suppositions, the balance may not inexorably tip toward privacy; the individual in question in this case was indicted for a serious federal crime, as contrasted with some mere witness or person of interest who was not charged."  The court finds that "[t]here may be a heightened public interest in learning about the government's conduct with respect to a criminal defendant and a diminished expectation of personal privacy residing in the accused."

Additionally, the court notes that if the Supreme Court had intended to "exempt all documents with information related to private individuals" without further analysis, the Court in Reporters Committee, "could have simply observed that the claimants sought information about a particular private individual," rather than "perform[ing] a lengthy examination of whether the aggregation of information in a 'rap sheet' made the record one that contains private information."  As such, the court orders "the remaining Defendant to show cause why the Court should not remand Plaintiff's original, exhausted FOIA request to the Department of Justice so that the agency may review it in light of this Opinion and determine what documents, if any, must be produced for Plaintiff, with any exemption to be claimed with specificity."

4.  Tchefuncta Club Estates v. U.S. Army Corps of Eng'nrs, No. 10-1637, 2011 WL 2037667 (E.D. La. May 24, 2011) (Africk, J.)

Re:  Request for applications for permits filed by two separate companies

Holding:  Denying plaintiff's motion for attorney fees and litigation costs

• Attorney fees and costs/eligibility:  The court denies plaintiff's request for attorney fees and litigation costs, concluding that plaintiff is not eligible for such an award because it "is unable to show a change in position by the agency."  The court finds that "the fact that plaintiff received some of its requested documents following a change in circumstances does not evidence a change in position by the agency."  Rather, the court notes that "[f]rom the outset, [defendant] has maintained that pursuant to FOIA Exemption 4, prior to the issuance of a permit, it will not release the needs analysis sections which, according to the applicants' objections, contain trade secrets and/or proprietary confidential information," but that upon "issuing of a permit, the application, including the needs analysis section, becomes a public record and FOIA Exemption 4 becomes moot."  The court observes that defendant, in fact, followed this procedure – releasing the one company's application once the permit issued, and withholding another company's application where the permit had not been issued.

5. McLeod v. DOJ, No. 11-958, 2011 WL 2112477 (D.D.C. May 24, 2011) (Huvelle, J.) 

Re:  Petition for mandamus relief, or in the alternative, declaratory judgment and injunctive relief seeking to compel DOJ and EOUSA to release certain records related to a federal public corruption investigation and to disclose exculpatory evidence relevant to petitioner's criminal prosecution in state court

Holding:  Granting petitioner's in forma pauperis application, but dismissing petition pursuant to 28 U.S.C. § 1915A

• Litigation considerations:  As a preliminary matter, the court notes that it "may not entertain an action for such extraordinary remedies as a writ mandamus or a declaratory judgment if another adequate remedy is available."  The court notes that here the FOIA "is the proper vehicle for obtaining records from United States agencies." Accordingly, "[b]ecause there is no indication from the petition that petitioner has made a FOIA request to DOJ or EOUSA for the records he seeks, the Court finds that he has stated no claim upon which relief may be granted."  The court therefore dismisses petitioner's mandamus petition pursuant to 28 U.S.C. § 1915A.

6.  Raher v. BOP, No. 09-526, 2011 WL 2014875 (D. Or. May, 24, 2011) (Stewart, Mag.)

Re:  Request for records pertaining to BOP's solicitations, evaluation and award of contracts to provide, maintain and operate private detention facilities for foreign nationals serving criminal sentences imposed by federal courts

Holding:  Granting, in part, plaintiff's motion for summary judgment with respect to records withheld under Exemptions 3, 7(E) and 7(F) and certain records withheld pursuant to Exemption 4; concluding that an evidentiary hearing is necessary to resolve a factual dispute with respect to certain records withheld under Exemption 4; and ordering that BOP supplement the record with regard to its search for certain documents

• Exemption 2:  In light of the Supreme Court's decision in Milner v. Department of the Navy, the court finds that "BOP cannot rely on the High 2 Exemption to withhold any of its documents, and [plaintiff] is granted summary judgment as to Exemption 2."  The court notes, however, that "BOP has now taken appropriate action to produce documents withheld based solely on the High 2 Exemption." 

• Exemption 3:  The court finds that BOP improperly asserted Exemption 3 in conjunction with the National Defense Authorization Act for Fiscal Year 1997, 41 U.S.C. § 253b(m), and the Federal Procurement Policy Act, 42 U.S.C. § 423(a) and (f) to withhold certain technical proposal records associated with the requested contracts.  As an initial matter, the court notes that "[t]he parties do not dispute that § 423 [generally restricting disclosure of contractor bid, proposal information, or source selection information before award of a contract] and § 253b(m) [prohibiting disclosure of contractor proposals that are not incorporated into a contract with an agency] are statutes which leave no discretion as to the matters to be withheld."  Reviewing the statutory text, implementing regulations, and the case law associated with § 423, the court concludes that "Exemption 3 does not protect bid or proposal information from disclosure postaward based on § 423 and its implementing regulations unless it 'pertains to another procurement or is prohibited by law.'"  Because "[n]one of the documents requested by [plaintiff] pertain to another procurement," the court looks to § 253b(m) to ascertain whether "they are 'prohibited by law' from disclosure."  The court then concludes that § 253b(m) "does not bar disclosure of documents incorporated by reference in awarded contracts."  Accordingly, the court concludes that, to the extent that BOP asserted Exemption 3 to withhold documents incorporated by reference into awarded contracts, "then such documents must be released unless protected by some other FOIA Exemption."  Moreover, "[s]ince [plaintiff] seeks disclosure only of successful proposals, BOP also cannot invoke Exemption 3 to withhold those documents and must rely on one of the other FOIA exemptions."

• Exemption 7 (threshold):  Citing Justice Alito's concurring opinion in Milner, the court opines that "after Milner, it is unclear whether BOP still qualifies as a law enforcement agency," noting that "[n]othing in the record reveals that BOP has any apprehension, crime detection or crime prevention duties beyond its custodial duties."  Acknowledging that BOP's "primary purpose is to maintain security by housing prisoners, some of whom have been convicted of violent crimes," the court concludes that "[a]t best, BOP has both administrative and law enforcement functions and, thus, must demonstrate that each withheld document was compiled for law enforcement purposes." 

• Exemption 7(E):  With respect to Exemption 7(E), the court finds that "[a]lthough BOP has shown that disclosure of information pertaining to 'security electronics,' 'security inspection system,' and staffing vulnerabilities raises security concerns with respect to its custodial functions, it has submitted nothing to explain why the withheld documents pertain to law enforcement functions that are protected from disclosure under Exemption 7(E)."  The court notes that assuming "BOP qualifies as a law enforcement agency and compiles the requested records for the law enforcement purpose of maintaining security, it must still show that the withheld records are techniques, procedures or guidelines for 'law enforcement investigations or prosecutions' covered by Exemption 7(E)."  Because BOP has failed to make such a showing, the court "grant[s] summary judgment to plaintiff as to Exemption 7(E)."

• Exemption 7(F):  The court holds that BOP "may rely on Exemption 7(F) to withhold information in the technical proposals . . . pertaining to physical security plans, blue prints, architectural floor plans, door and key lock specifications, ceiling plans, and any information regarding the internal physical structure of a BOP correctional facility."  However, the court finds that BOP's justifications for withholding other information under Exemption 7(F), including "'staffing patterns,' 'institution operations,' 'offender accountability techniques,' and 'institution accountability techniques,'" was "simply too general to allow [plaintiff] or this court to test the validity of BOP's redactions."  The court points out that "BOP publishes many of its internal policies pertaining to institutional security and inmate programs and services in full on its publicly accessible webpage" and that "[a]ny inmate or visitor to a BOP facility is able to observe 'staffing patterns' and certain 'institutional operations.'"  Moreover, the court finds that "BOP has not bothered to describe 'offender accountability techniques' or 'institution accountability techniques' and those phrases convey nothing about security concerns." 

Additionally, the court comments that "the problem is exacerbated" by BOP's failure to demonstrate that it has segregated nonexempt information.  Accordingly, the court grants summary judgment to plaintiff for those items that it deemed not protected by Exemption 7(F), but "[i]n order to prevent the public release of potentially damaging information to BOP's security concerns," the court determines that "BOP may release such information pursuant to a protective order that prohibits disclosure by [plaintiff] to anyone else without prior BOP or court approval."

• Exemption 4/voluntary or required submission:  At the outset, the court notes that it had previously concluded that "the submitters [in this case] did not voluntarily provide information to BOP, but instead provided it as a mandatory requirement of compliance with the [Criminal Alien Requirement (CAR)] procurement process."  Consequently, "the only issue is whether the disclosure is likely to cause substantial harm to the competitive position of the providers of the information." 

• Exemption 4/submitter notice:  The court holds that because BOP first processed the records, redacting information it believed to be exempt and then sent those redacted versions to the submitters, the absence of objections from some submitters "can only be interpreted to mean that they concurred with BOP's proposed redactions."  Thus, "BOP may invoke Exemption 4 as to information received from all five submitters despite the lack of objection by some of them." 

• Exemption 4/substantial competitive harm prong/actual competition:  Based on declarations submitted by BOP, one of the submitters, and plaintiff, the court determines that "the record continues to show only that a small number of entities meet the solicitation criteria for the CAR procurement process and are capable of supplying BOP with the facilities and services required."  Still, the court concludes that "BOP has met its burden of showing the existence of actual competition as required by Exemption 4," noting that plaintiff's declarant, an economist concedes that "the record 'supports the conclusion that prison operators compete in the relevant market, at least some of the time' for CAR contracts and renewals." 

• Exemption 4/threshold:  The court holds that BOP cannot assert Exemption 4 "to categorically exempt all internal price evaluation and source selection decision records which [BOP itself] generated for the purpose of evaluating bids" because this information was "not 'obtained from a person' as required by Exemption 4."  Rather, the court finds that "Exemption 4 only protects information contained in those records that was obtained from the submitters, disclosure of which will cause them substantial competitive harm."

• Exemption 4/substantial competitive harm:  The court agrees with plaintiff that Exemption 4 does not protect documents that are publicly available, but finds that "[i]t is not clear . . .  which documents BOP is withholding under Exemption 4 that are otherwise publicly available other than those already obtained by [plaintiff from a local government entity]."  However, the court concludes that "[s]imply because [plaintiff] has obtained some documents from elsewhere does not necessarily mean that BOP is required to release all other documents in its possession that contain similar information."  Accordingly, "[t]o obtain disclosure of any other documents not already obtained elsewhere, [plaintiff] must submit additional evidence conclusively establishing that those documents are 'freely and cheaply available from other sources.'" 

The court identifies a number of issues with regard to BOP's decision to withhold the pricing structure contained in the awarded contracts and the proposals from successful bidders.  However, the court determines that based on the declaration of one of the submitters, "BOP has created a genuine issue of material fact as to whether a submitter will likely suffer substantial competitive injury if the withheld information is released" and, as such, concludes that "an evidentiary hearing is necessary to determine whether BOP may invoke Exemption 4 to protect pricing information, in particular, activation and staffing schedules and option renewal prices."  BOP has not, however, demonstrated that release of "the number of beds awarded by each contract" qualify for protection under Exemption 4.  The court observes that "dividing the total price by the number of beds does not reveal the complicated pricing structure of the contract."    

With respect to past performance records, the court finds that "[n]othing in BOP's or [one of the submitter's] submissions explain why Exemption 4 should protect those portions of past performance documents which are unrelated to pricing information."  Accordingly, the court concludes that plaintiff "is entitled to summary judgment as to the past performance records that are narratives and lists of occurrences . . . which clearly are unrelated to pricing."  As to technical proposals categorized by BOP as "Institutional Operations," "Contract Activation," and "Physical Plant," the court determines that "BOP has submitted insufficient evidence to satisfy its burden to justify Exemption 4 . . . and [plaintiff] is entitled to summary judgment to that extent." 

• Adequacy of search:  The court directs BOP to supplement the record to establish that it conducted an adequate search with respect to records for which the court had previously ordered it to search.  The court finds that "BOP does not explain its storage and retrieval systems, its search methods or the extent of its search." 

Topic(s): 
FOIA

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Updated August 6, 2014